Take the Fifth

Designated for publication

• United States v. Nyandoro, 23-10579, appeal from N.D. Tex.
  • Willett, J. (Stewart, Clement, Willett) (oral argument heard on initial review); criminal, guilty plea, Second Amendment, Commerce Clause
  • Upon remand from U.S. Supreme Court, affirming conviction of firearm-possession-by-controlled-substance-user on guilty plea, rejecting challenge to appeal-waiver.
  • Kenleone Joe Nyandoro was charged with possessing a firearm as an unlawful user of a controlled substance under 18 U.S.C. § 922(g)(3). He accepted a plea deal that included entering a rehabilitation program in exchange for dismissal of charges, and he explicitly waived his right to appeal his conviction and sentence. Six months in, he fled a traffic stop at over 100 mph, was removed from the program, and his case proceeded to sentencing. The district court denied his motion to withdraw his guilty plea and sentenced him to 51 months in prison.
  • At issue on remand from Supreme Court was whether Nyandoro could invoke the “miscarriage of justice” exception recognized in Hunter I to overcome his appeal waiver and challenge his conviction under § 922(g)(3) as unconstitutional on Second Amendment, vagueness, and Commerce Clause grounds.
  • The court explained that Hunter I requires an error that is both “obvious—not one a judge could reasonably make”—and “of the type that would undermine public confidence in the judiciary.” None of Nyandoro’s three constitutional theories met that standard. His Commerce Clause and vagueness challenges were quickly dispatched because this court has consistently upheld other portions of § 922(g) under the Commerce Clause and has rejected a nearly identical vagueness challenge to § 922(g)(3). His Second Amendment challenge, while requiring “closer attention,” also fell short: both Connelly and Daniels recognize that history can support disarming “presently intoxicated persons,” and the facts here—Nyandoro admitted daily marijuana use, and a witness smelled marijuana in his bedroom on the day of the charged possession—made the constitutional question “at least reasonably debatable. And debatable is not obvious.” The Supreme Court’s recent decision in Hemani did not change the result because it expressly left open efforts to disarm presently intoxicated persons.
  • The court also declined to reopen the plea-withdrawal issue, finding that Nyandoro’s belated reliance on United States v. Presley was unpersuasive, as Presley did not establish a categorical rule and foreshadowed the multi-factor approach the district court properly applied.

• Sterling v. City of Jackson, 24-60370, appeal from S.D. Miss.
  • Engelhardt, J. (joined by Elrod, Jones, Smith, Richman, Willett, Ho, Duncan, Oldham, Wilson); Haynes, J., dissenting (joined by Stewart, Higginson, Douglas, Ramirez); Southwick, Graves, JJ., recused; en banc, due process
  • On en banc rehearing from November 17, 2025, panel decision (Haynes, Engelhardt, Dennis; Dennis, dissenting in part), affirming dismissal of sec. 1983 claims on the pleadings in suit arising from lead-contamination in public water supply of City of Jackson.
  • Residents of Jackson, Mississippi, sued the City and various officials under 42 U.S.C. § 1983, alleging the City caused lead to leach into drinking water through mismanagement and then falsely told residents the water was safe, resulting in serious health effects including lead poisoning in children. The district court dismissed the § 1983 claims on the pleadings, and a panel reversed in part before the en banc court vacated that decision.
  • At issue on rehearing was whether the plaintiffs alleged cognizable substantive due process rights under the Fourteenth Amendment—specifically, a right to be free from exposure to contaminated water and a right to truthful information from public officials about contaminants.
  • The en banc majority held that neither alleged right is “deeply rooted in this Nation’s history and tradition,” and plaintiffs therefore failed to state a § 1983 claim. The court further held that even if a constitutional right existed, the City officials would be entitled to qualified immunity because there is no controlling authority or robust consensus of persuasive authority clearly establishing such rights.
  • The majority emphasized the Supreme Court’s instruction to “exercise the utmost care whenever we are asked to break new ground” in substantive due process and to adhere to history and tradition as guideposts. On the contaminated-water claim, the court found that the City’s mismanagement resulting in lead exposure was “wholly different from forced surgery, involuntary medicating, and assault” and did not implicate the right to bodily integrity. The court declined to follow the Sixth Circuit’s Guertin v. Michigan decision addressing the Flint water crisis. On the truthful-information claim, the court found “no deeply rooted history or tradition” and declined to expand substantive due process to cover statements by public officials during a public crisis. As the majority observed: “our sympathies cannot be the basis for transforming quintessential tort claims into 42 U.S.C. § 1983 claims.”
  • Judge Haynes dissented, contending that the majority “omit” the plaintiffs’ state-created danger claim entirely, despite extensive briefing and oral argument. Judge Haynes noted that ten sister circuits have adopted the state-created danger doctrine while the Fifth Circuit has engaged in “decades-long fence-sitting,” calling this “a disservice to injured plaintiffs who are forced to litigate in endless uncertainty about their federal rights.” On bodily integrity, the dissent urged that lead is “distinguishable from therapeutic medicines” and that “involuntarily subjecting nonconsenting individuals to foreign substances with no known therapeutic value . . . is a classic example of invading the core of the bodily integrity protection.” The dissent agreed the individual officials were entitled to qualified immunity but contended that, “[a]t a minimum, Plaintiffs are entitled to discovery on their sufficiently plausible allegations that the City violated their constitutional rights.”

• Starbucks Corp. v. NLRB, 24-60650, petition for review of NLRB order/petition for enforcement
  • Wiener, J. (Wiener, Haynes, Graves) (oral argument), Haynes, J., dissenting in part; labor law
  • Granting in part petition to enforce NLRB order and denying in part.
  • Workers United launched a union organizing campaign across Starbucks’s Buffalo-area stores. The NLRB found that Starbucks committed sweeping unfair labor practices—including soliciting grievances and granting benefits to deter organizing, surveilling employees, interrogating them about union support, making coercive threats, closing a store, and firing union-affiliated employees—violating NLRA §§ 8(a)(1), (3), (4), and (5). The Board ordered remedies including consequential damages, a bargaining order at one store, reopening a shuttered kiosk, and a public notice reading.
  • At issue on petitions was whether substantial evidence supported the Board’s numerous findings of unfair labor practices and whether the Board’s remedies were appropriate.
  • The court largely upheld the Board’s findings but carved out narrow exceptions. It denied enforcement of one surveillance finding (regarding a manager confronting an employee over a slur in an employee group chat), the sole finding of unlawful interrogation, and the sole finding of coercive threats, remanding the § 8(a)(1) order for revision. It granted enforcement of the § 8(a)(3), (4), and (5) violations. As to remedies, the court denied enforcement of consequential damages (barred by circuit precedent), denied enforcement of the order to reopen the Galleria kiosk (now owned and operated by a third party, making it “virtually impossible”), granted enforcement of the bargaining order at the Camp Road store, and granted enforcement of the public notice-reading order.
  • On § 8(a)(1), the court found that Starbucks failed to explain “why [it] focused and amplified these measures in the Buffalo region only after union organizing activity began” and that “the suggestion of a fist inside the velvet glove” was supported by the record. On § 8(a)(3)/(4), the court found “a glaring discrepancy” in that “Starbucks did not consistently take the same adverse action against other employees who engaged in similar if not more egregious conduct than the at-issue employees.” On the bargaining order, the court rejected Starbucks’s argument that the Board improperly considered misconduct at other Buffalo stores, finding its pervasive conduct sufficient to support an inference that a fair election could not be ensured. On the public notice reading, the court found that “the myriad decisions involving Starbucks’s unfair labor practices lends support to the inference that this petition is not Starbucks’s first rodeo.”
  • Judge Haynes dissented in part, contending that Starbucks’s store improvements were legitimate responses to “the worst store condition [the regional director] had ever seen” and that the Board’s conclusion that a nationwide wage increase announced before the union campaign violated § 8(a)(1) was “illogical.” Judge Haynes also contended the Board denied Starbucks due process by finding a § 8(a)(1) violation sua sponte on the employee promotions when the conduct was originally alleged as a § 8(a)(3) violation. She would have denied enforcement or remanded the § 8(a)(3) and (4) findings because the Board failed to specify which § 8(a)(1) violations informed its conclusions.

• Starbucks Corp. v. NLRB, 24-60653, petition for review of BIA order
  • Higginson, J. (Smith, Wiener, Higginson; Wiener, J., unable to participate in decision, so decided by quorum) (oral argument); labor law
  • Granting in part enforcement of NLRB order.
  • Manager Carmella Neri held routine performance meetings with employees at the Amidon store and made statements referencing unions and the potential effects of unionization on benefits. She told a pregnant employee that “if you were interested in organizing, these benefits could not be guaranteed to you” after highlighting Starbucks’s maternity-leave benefits. Separately, Neri told a shift supervisor that store hours were reduced “to relieve some of the pressure that the Union had on the people,” and assistant manager Jacobs told the supervisor the hiring portal was closed because Starbucks “couldn’t talk about [unions] during the hiring process.” The Board found all of these statements, plus the aggregate impression of surveillance, violated § 8(a)(1).
  • At issue on petition was whether the Board’s findings that Starbucks committed unfair labor practices through threats of reprisal regarding loss of benefits, store hours changes, hiring portal closure, and creation of an impression of surveillance were supported by substantial evidence.
  • The court granted enforcement only as to the threat of reprisal for loss of benefits (Neri’s statement to Cuellar-Serafini) and denied enforcement on all other determinations.
  • On the loss-of-benefits claim, the court found Neri’s statement that “benefits could not be guaranteed” lacked “any reference to the collective-bargaining process or to any economic necessities or other objective facts” and, paired with her highlighting of maternity benefits to a pregnant employee, could “be reasonably interpreted as a suggestion that Starbucks was going to take a punitive bargaining position.” On the store-hours claim, the court found the ALJ mischaracterized Neri’s testimony—she spoke of relieving union “pressure,” not penalizing union activity—and that shift supervisor Fonseca understood the hours change stemmed from staffing shortages. On the hiring portal, the court found Jacobs’s explanation about the difficulty of not being able to discuss the union with applicants was too “attenuated from current employees’ terms and conditions of employment” to constitute a threat of reprisal. On surveillance, the court found the Board’s two pillars—that union discussions occurred only outside the store and that Neri’s remarks were “out of the ordinary”—were not supported by substantial evidence, as employee testimony suggested discussions occurred inside the store, and the meetings were “the first ones after such efforts began,” so discussing unionization for the first time was not inherently coercive.

• Lucid Group USA, Inc. v. Johnston, 25-50319, appeal from W.D. Tex.
  • Higginbotham, J. (Elrod, Higginbotham, Graves) (oral argument), Elrod, C.J., concurrence dubitante; Higginbotham, concurrence dubitante; Equal Protection, Due Process
  • Affirming dismissal of challenge to Texas law prohibiting auto manufacturers from owning or operating a dealership for their vehicles.
  • Lucid, an electric-vehicle manufacturer that sells directly to consumers through retail “studios” and has no independently franchised dealers, challenged a Texas law (Tex. Occ. Code § 2301.476) barring manufacturers from owning or operating a dealership for their own vehicles. After the Texas DMV notified Lucid it could not sell vehicles at its Plano studio, Lucid brought as-applied challenges under the Equal Protection and Due Process Clauses.
  • At issue on appeal was whether Texas’s direct-sales prohibition violates the Fourteenth Amendment as applied to a non-franchised electric-vehicle manufacturer.
  • The court held the prohibition survives rational basis review under both the Equal Protection and Due Process Clauses, following its precedent in Ford Motor Co. v. Texas Department of Transportation, International Truck, and Tesla, Inc. v. Louisiana Auto. Dealers Ass’n.
  • The court found that Lucid’s as-applied claims were not “legally and factually distinct” from arguments already rejected. Under Tesla, the relevant classification is “the class of all vehicle manufacturers,” not a subset of non-franchising ones, and “there is hardly a more quintessential example of vertical integration than a manufacturer’s extending itself into distribution.” The court further held that rational basis review mirrors under both the Equal Protection and Due Process Clauses, so Lucid’s substantive due process claim failed for the same reason.
  • Chief Judge Elrod concurred but expressed “doubts both as to whether the Tesla case forecloses Lucid’s as-applied challenge” and “as to the substantive correctness of Tesla‘s holding about the rationality of such laws as applied to relatively new entrants in the car market,” noting that “[e]conomic protection of a favored industry is not, on its face, a legitimate state interest.”
  • Judge Higginbotham, the opinion’s author, also wrote separately to “register my discomfort with Tesla‘s restraint of an electric-vehicle manufacturer that perpetuates none of the ills that motivated” the law’s enactment. He traced the historical origins of direct-sales bans to the “Big Three” franchising manufacturers’ exploitation of their franchisees and argued the “dealer-protection rationale . . . has no application to a non-franchised manufacturer with no downstream intra-brand entities to harm.” He warned that “imposing market restraints on this emerging industry stifles innovation and technological advancement” and concluded: “A per se presumption of cognizable harm when an automobile manufacturer engages in vertical integration, detached from facts of the manufacturer’s business model, defies the fact-specific nature of the rational basis inquiry.”

• Okene v. Blanche, 25-60559, petition for review of BIA order
  • Jones, J. (Jones, Southwick, Willett) (no oral argument), immigration
  • Denying petition for review of BIA order upholding denial of cancellation of removal, including under the Violence Against Women Act.
  • Wilberforce Okene, a Nigerian citizen, entered the United States in 2004, overstayed his business visa, and was charged as deportable. He applied for cancellation of removal based on hardship to his U.S.-citizen wife, Atebo, who has multiple medical conditions, and for special cancellation under the Violence Against Women Act based on domestic abuse by a prior U.S.-citizen wife, Nicole Martin, who had threatened to report him to immigration authorities, banned him from cooking African food, burned him with an iron, and subjected him to verbal abuse. The IJ denied both forms of relief, and the BIA summarily affirmed.
  • At issue on petition was (1) whether the BIA erred by summarily affirming the IJ’s decision; (2) whether Okene demonstrated “exceptional and extremely unusual hardship” for cancellation of removal; and (3) whether Okene demonstrated “battery or extreme cruelty” and “extreme hardship” for VAWA special cancellation. Notably, the court addressed the standard of review for cancellation-of-removal hardship determinations in light of the Supreme Court’s recent decision in Urias-Orellana v. Bondi.
  • The court held that the BIA’s summary affirmance was proper under Matter of Burbano, rejecting Okene’s argument that summary affirmance is inherently incompatible with de novo review. Significantly, the court adopted a substantial-evidence standard of review for hardship determinations under § 1229b(b)(1) (cancellation) and for both battery/cruelty and hardship determinations under § 1229b(b)(2) (VAWA special cancellation), joining other circuits in extending Urias-Orellana‘s reasoning beyond the asylum context. On the merits, the court found that although Atebo’s medical conditions and financial difficulties were real, Okene had not shown hardship “substantially different from or beyond that which would ordinarily be expected from the deportation of a close family member.” On the VAWA claim, the court found Martin’s mistreatment—while undeniable—fell short of the statutory threshold, noting that “threats of deportation, name-calling, [and] bullying . . . are a far cry from the acts of physical violence, rape, and forceful detention

Unpublished decisions

• Thomas v. Upshaw, et al., 24-40691, appeal from E.D. Tex.
  • per curiam (Stewart, Richman, Higginson) (no oral argument), prisoner suit
  • Affirming dismissal of Texas state prisoner’s sec. 1983 claims.
  • Jewell Thomas, a state prisoner, brought a 42 U.S.C. § 1983 civil rights action alleging that prison officials failed to accommodate his disability under the ADA and the Rehabilitation Act, were deliberately indifferent to his serious medical needs, failed to adopt an appropriate policy for patients with chronic pain in drug treatment programs, and conspired to deprive him of constitutional rights. He also challenged the district court’s grant of qualified immunity to the defendants, its failure to construe his objection to the magistrate judge’s report as a motion to amend, and the timing of the defendants’ motions to dismiss.
  • Thomas failed to allege discrimination because of a disability (defeating his ADA/RA claims), and the record showed he received medical treatment for his chronic pain—his disagreement with that treatment did not state a deliberate-indifference claim. Because no constitutional deprivation was alleged, the conspiracy claim and the qualified immunity ruling were also proper. The court further held that Thomas’s objection to the magistrate judge’s report merely reasserted earlier arguments and was not properly a motion to amend, and that the district court could dismiss an in forma pauperis case at any time under 28 U.S.C. § 1915(e)(2)(B)(ii).

• In re Whitestone Uptown Tower, L.L.C., 25-10947, appeal from N.D. Tex.
  • Smith, J. (Smith, Willett, Ramirez) (oral argument), Willett, J., dissenting; bankruptcy
  • Affirming district court’s judgment upholding Statutory subrogation.
  • This complex bankruptcy appeal concerned statutory subrogation under 11 U.S.C. § 509(a). Whitestone REIT Operating Partnership, L.P. (WROP), as guarantor, paid approximately $13 million to discharge Uptown Tower’s defaulted loan after Uptown Tower had secretly removed WROP as manager of its LLC and filed for bankruptcy. WROP filed a proof of claim seeking to be subrogated to the secured creditor’s rights. Uptown Tower argued that WROP was primarily liable (as a co-debtor) rather than secondarily liable, that the unconditional guaranty under Texas law foreclosed subrogation, and that a partial payment could not support subrogation. A threshold issue was whether Uptown Tower retained bankruptcy appellate standing under the “person aggrieved” test, given that a settlement agreement in a related bankruptcy purportedly routed all remaining funds to WROP.
  • The Fifth Circuit denied Uptown Tower’s motion for reconsideration of supplemental record materials (holding the court could take judicial notice of public bankruptcy filings relevant to jurisdiction), found that Uptown Tower retained standing because the flow-through of funds was not strictly guaranteed by the related settlement order, and affirmed the district court’s judgment upholding statutory subrogation. The court held that a guarantor who pays a creditor’s claim is secondarily liable within the meaning of § 509(a), even under an unconditional guaranty of payment in Texas, because liability attaches only after the primary obligor’s default. The court relied on In re Corland Corp., 967 F.2d 1069 (5th Cir. 1992), and the “ultimate liability” test from In re Wingspread Corp., 145 B.R. 784 (S.D.N.Y. 1992), noting that WROP, as guarantor, never received the consideration for the loan—only Uptown Tower did.
  • The court also rejected Uptown Tower’s argument that WROP’s $13 million payment was merely “partial,” noting the statutory language “to the extent of such payment” in § 509(a) and the structural inference from § 509(c).
  • Judge Willett dissented, contending the court should have dismissed the appeal for lack of subject-matter jurisdiction because Uptown Tower was not a “person aggrieved.” He contended that the debtor’s Second Amended Plan of Reorganization and the Rule 9019 Order in the related bankruptcy left Uptown Tower without any direct pecuniary stake: “A chain of ‘mights,’ ‘perhapses’ and a ‘not strictly guaranteed’ does not get there.” He criticized the majority for relying on speculation about future noncompliance, writing: “Jurisdiction cannot turn on what a litigant says it intends to do, much less on an intention to disregard a court order.” He quipped that if mere litigation persistence established standing, “‘person aggrieved’ would become ‘person aggravated.'”

• United States v. Lewis, 25-30586, appeal from W.D. La.
  • per curiam (Jones, Southwick, Willett) (oral argument withdrawn), criminal, Second Amendment
  • Affirming conviction of felon-in-possession.
  • Theopless Lewis, who had prior Louisiana state convictions for cocaine possession and home invasion, challenged the constitutionality of 18 U.S.C. § 922(g)(1) (felon-in-possession) as applied to him under the Second Amendment and New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). The court noted that under United States v. Hembree, 165 F.4th 909 (5th Cir. 2026), simple drug possession alone no longer suffices to justify applying § 922(g)(1), so the government relied solely on Lewis’s home invasion conviction.
  • The court held that Louisiana home invasion (La. Rev. Stat. § 14:62.8), which requires unauthorized entry of an inhabited dwelling while a person is present with intent to use force or violence or to vandalize property, categorizes the offender as violent and dangerous. Drawing on Taylor v. United States, 495 U.S. 575 (1990), the court reasoned that home invasion creates an especially dangerous confrontation because an occupant must be present, and Lewis’s actual conduct—breaking into his ex-girlfriend’s home after midnight and striking her—”removes any lingering doubt.” Disarming those convicted of home invasion “fits comfortably” within the Nation’s tradition of preventing individuals who threaten physical harm from misusing firearms.

• United States v. Singleton, 25-30657, appeal from E.D. La.
  • per curiam (Stewart, Richman, Higginson) (no oral argument), criminal, sentence reduction
  • Affirming denial of motion for sentence reduction.
  • Heath Singleton, a federal prisoner serving a life sentence for carjacking, appealed the denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction based on Part A of Amendment 821 to the Sentencing Guidelines. Singleton argued the district court failed to consider his young age at the time of the offenses, placed too much emphasis on his prison disciplinary history, and violated Tapia v. United States, 564 U.S. 319 (2011).
  • The court found the district court reviewed the motion even if it did not address each argument, that disciplinary history was an appropriate consideration under § 3553(a)(1), that Singleton’s complaints amounted to disagreement with the district court’s balancing of sentencing factors (insufficient to show abuse of discretion), and that Tapia was inapplicable.

• MK Mall Holdings, L.L.C. v. Underwriters at Lloyds of London, et al., 25-30704, appeal from W.D. La.
  • per curiam (Willett, Engelhardt, Wilson) (no oral argument), insurance, arbitration, mootness
  • Dismissing as moot insurer’s appeal of order setting deadline to complete arbitration.
  • This insurance dispute arose from Hurricane Ida damage. After the district court compelled arbitration and stayed litigation, it later set a deadline for completing arbitration and scheduled a settlement conference and evidentiary hearing. The insurers appealed, seeking adherence to the original arbitration order. While the appeal was pending, the district court applied the Fifth Circuit’s intervening decision in Crescent City Surgical Operating Co. v. Interstate Fire & Cas. Co., No. 25-30044, 2026 WL 1091579 (5th Cir. Apr. 22, 2026), denied a renewed motion to reopen, maintained the stay, and administratively closed the case.
  • The Fifth Circuit dismissed the appeal as moot. Because the district court’s latest order already applied Crescent City, stayed the litigation, and administratively closed the case with no deadlines set, there was “no remedy” the court could provide to the insurers, and any merits ruling would be merely advisory.

• United States v. Aguilar-Guerrero, 25-50737, appeal from W.D. Tex.
  • per curiam (Stewart, Richman, Higginson) (no oral argument), criminal, sentencing
  • Affirming 72-month sentence on conviction of illegal reentry.
  • The record did not show the sentence failed to account for a factor that should have received significant weight, gave significant weight to an irrelevant or improper factor, or represented a clear error of judgment in balancing the sentencing factors.

• United States v. Miranda-Sauceda, 25-50899, appeal from W.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.
  • Jaime Rene Miranda-Sauceda appealed his sentence for illegal reentry after removal, arguing for the first time on appeal that the district court failed to adequately explain its reasons for imposing an above-guidelines sentence and erred in imposing supervised release on a deportable alien.
  • The district court’s explanation was sufficient for meaningful appellate review, there was no indication a shorter sentence would have resulted from a fuller explanation, and Miranda-Sauceda’s criminal history supported the supervised release term as an added deterrence measure.

• United States v. Herrera-Lizama, 26-10131, appeal from N.D. Tex.
  • per curiam (King, Higginson, Douglas) (no oral argument), criminal, sentencing
  • Affirming enhanced sentence on conviction of illegal reentry.

• Weatherford Independent School District v. K.L., 26-10252, appeal from N.D. Tex.
  • per curiam (Jones, Southwick, Willett) (oral argument), Individuals with Disabilities Education Act
  • Remanding for review of ordered placement of student under the IDEA.
  • This expedited appeal concerned the “stay-put” provision of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1415(j). A State Hearing Officer ordered Weatherford ISD to provide compensatory education to K.L. in the form of residential placement for one year at “CALO programs or a comparable TEA-approved residential placement.” The question was whether the school district must implement that ordered placement while the appeal proceeds.
  • The Fifth Circuit remanded with instructions to the district court to promptly consider the stay-put order along with pending summary judgment motions. The court noted it was not its place to finalize the placement but that compliance with the stay-put provision requires implementation of the hearing officer’s decision pending further proceedings.

• Marbury v. United National Insurance Co., 26-30005, appeal from W.D. La.
  • per curiam (Jones, Southwick, Willett) (oral argument withdrawn), insurance
  • Vacating summary judgment for insurer on hurricane damage, and remanding.
  • This case returned to the Fifth Circuit for a second time (Marbury I, No. 24-30599, 2025 WL 2126664 (5th Cir. July 29, 2025)). Annie Marbury sought insurance proceeds for hurricane damage to a church-owned property, claiming she held an insurable interest based on her personal financial investment (mortgage and insurance payments, furnishings). The district court on remand again granted summary judgment to United National, finding that Marbury’s checks were payable to the Church, written as tithes, not for the same amount as the mortgage, and dated after the loss. The core issue was whether the district court properly evaluated Marbury’s self-serving affidavit testimony asserting she paid the mortgage, insurance premiums, and furnishing costs with personal funds.
  • The court held that the district court again failed to analyze Marbury’s affidavit and deposition testimony under proper summary judgment standards, effectively disregarding it without assessing whether it was vague or conclusory—the same error identified in Marbury I. Under Fifth Circuit precedent, self-serving affidavits may create genuine issues of material fact if they are otherwise competent, and they cannot be discounted merely because they are self-interested.

• United States v. Aguirre-Barra, 26-50127, appeal from W.D. Tex.
  • per curiam (Stewart, Richman, Higginson) (no oral argument), criminal, sentencing
  • Affirming enhanced sentence on conviction of illegal reentry.

• Snell v. 21st Mortgage Corp., 26-60059, appeal from N.D. Miss.
  • per curiam (Stewart, Graves, Wilson) (no oral argument), foreclosure
  • Affirming summary judgment in lender on suit arising from foreclosure.
  • Curtis and Tywanic Snell appealed the grant of summary judgment to 21st Mortgage Corporation following a foreclosure sale of their mobile home and real property in Oktibbeha County, Mississippi. Snell raised two primary arguments: (1) a genuine issue of material fact existed as to whether 21st Mortgage properly posted notice of the foreclosure sale at the courthouse as required by Miss. Code Ann. § 89-1-55, and (2) 21st Mortgage improperly refused to accept partial payments to cure the default in violation of Miss. Code Ann. § 89-1-59.
  • On the notice issue, the record included a Substituted Trustee’s Notice of Sale containing all required information, signed and dated by the Land Records Clerk; Snell’s unsupported allegations were insufficient to create a genuine dispute. On the payments issue, the court applied Weems v. Transamerica Mortgage Co., 770 So. 2d 936 (Miss. 2000), holding that § 89-1-59 does not require a lender to accept partial payments, and the deed of trust itself allowed the lender to return insufficient payments.